is a good example of Paley's discussion of theories: and his result, that "the real foundation of our Right is the Law of the Land," is characteristic; as answering a speculative question in a sense quite different from that in which it had been asked. For the question was not how A, B, C came to have their especial shares of the English soil; (which is all that the Law of the Land can determine ;) but how any body of men, A, B, C, or any other, came to have, as property, the English soil, which they cannot hold or possess except by occasional use, and which very often the proprietor does not possess even so. Chapter vi. to xiv., on Contracts, contain rather questions of Law than of Morality: they are jural rather than moral discussions. Paley, in his Preface, says that the writings of Grotius are of too forensic a cast to answer the design of a system of ethics; but Grotius has at least carefully distinguished what is forensic from what is ethical, which Paley has not. Chapter xvi. is on Oaths. I have in Art. 613 explained why I think Paley wrong in his interpretation of the ordinary form of an Oath. The succeeding Chapter, on the Oaths against Bribery, Oaths against Simony, Oaths to observe Local Statutes, and Subscription to Articles of Religion, are discussions of special questions with reference to the controversies of the day. Book III. Part II. "Of Relative Duties which are indeterminate;" treats of what we have called the Duties of the Affections, and contains many good remarks well expressed; for instance, the remarks on the pretences by which men excuse themselves from giving to the poor; as "6, That they employ many poor persons-for their own sake, not the poor's-otherwise it is a good plea." Book III. Part III. "Of Relative Duties which arise from the Constitution of the Sexes;" also abounds in sensible practical reflections. Book IV. "Duties to ourselves." I conceive that the division of Duties into Duties to our Neighbours, Duties to Ourselves, and Duties owards God, is unscientific and inconvenient. This Book of Paley's Work illustrates this opinion; for the three points included in it, the Right of Self-Defense, Drunkenness, and Suicide, form an heterogeneous group; and include, moreover, relations to our neighbour, and to God. Book V. "Duties towards God." All Duties are Duties towards God. Some parts of this Book, those which refer to Forms of Prayer and to Sabbatical Institutions, are rather questions of Ecclesiastical Rule, than of Morality; and I have accordingly omitted the discussion of them, in my later editions. Book VI. "Elements of Political Knowledge." I have so fully considered most of the questions here discussed in my Book v., Polity, and have so far examined many of Paley's arguments, that I need not here return to the subject. CHAPTER IV. OF MITIGATIONS OF THE LAWS OF WAR. § 1. Capture at Sea. 1 I HAVE, in speaking of the Rights of War, (Book VI. Chap. ii.) noticed several steps by which the Laws of War, as generally acknowledged, became less savage and severe than they were at first. That additional mitigations of these Rules may be introduced, so long as war itself shall continue, must be the hope and aim of the moralist; and therefore we may add a few words to what we have said already, in order to point out some further advances in the same direction which have been recently proposed, and are, we may trust, on the eve of being carried into effect. 2 We have already said (1060) that in modern times a distinction has been made, in the conduct of war, between Combatants and Non-Combatants; and (1067) that in invading any country, Non-Combatants are relieved from any unnecessary molestation and loss; and the invader, so far as he succeeds, contents himself with superseding the higher functions of the State in the invaded Country, and perhaps imposes a special Tax or Contribution for himself; but does not disturb the persons, families, or private property of the subjects. They are allowed to carry on business and trade as at other times. 3 This is the acknowledged Rule of warfare by Land; and in ordinary cases it is practically observed; though undoubtedly it often happens that the presence of an invading army brings great oppression and calamity upon the population in general. But the Rule of the Sea during war is entirely different. All nations have maintained and exercised, as one of the Rights of war, the Right of seizing the private property of citizens of the hostile State captured at sea (1086) in ships of that state. In the earlier and fiercer times of war, the belligerent went further than this. He seized the property of those who were not enemies, if he found it in an enemy's ship. He seized the property of his enemy, if he found it in the ship of a friend. He even went so far as to confiscate the friendly ship for carrying the enemy's property; and further still, he forbade all commerce of other nations with the enemy. These were the haughty and fierce pretensions of belligerents, bent upon injuring their enemy by all possible means, and requiring every thing else, the commerce of other nations and the interests of private persons, not only to give way to this purpose, but to conspire with it. In opposition to these pretensions, arose on the other side the assertion of the Rights of Commerce. In modern times there have been wars which have taken place between nations, but in which neighbouring powerful nations have not participated and these Neutral Nations have insisted on controlling the harsh Rules which have just been mentioned; and have, in a considerable degree, succeeded. 4 The gradually ascending scale of mitigation, so far as captures at sea are concerned, may be stated as follows; with reference to the Rules regarding ships carrying goods which are private property*. 1 Neutral ships confiscated for carrying enemies' goods. 3 Enemies' ships condemn Neutral goods. That each belligerent forbids its own subjects to trade with the other belligerent, is understood, as part of received International Law. (Manning, B. III. c. iv. p. 122.) We may notice that the Public Debt of each State, even such portions of it as are due to enemies, is always paid during war, by International Law. (Manning, p. 129.) war. 4 Neutral ships do not protect enemies' goods. 5 Enemies' ships do not condemn Neutral goods. 6 Neutral ships protect enemies' goods. Of these Rules, the first has been abandoned by all belligerents, except when they have been tempted by the possession of great power, or inflamed by special excitement in the conduct of the The second is the ordinary Rule of war between belligerents in modern times, and does not affect neutrals. The fourth and fifth Rules are each of them a kind of compromise between the claims of belligerents and of neutrals. The third Rule, that Enemies' ships make enemies' goods, is the maxim of Belligerents; the sixth, that Free ships make free goods, is the maxim of Neutrals. 5 To combine these two, so that the ship shall determine the fate of the cargo, is perhaps the simplest rule: it spares the belligerent the trouble of entering into any inquiry respecting the proprietorship of the goods carried. This has been the course usually followed by France in naval warfare. England, on the contrary, has generally governed her seizures more by the goods than by the ships. She has asserted the fourth Rule, that neutral ships do not protect enemies' goods, and has condemned them when so taken; but, on the other hand, she has conceded the fifth Rule, that enemies' ships shall not condemn neutral goods, and has liberated neutral goods so taken. 6 An additional step in concession to the Rights of Commerce would be, to combine the mitigations of the Rights of Naval war hitherto adopted by the two countries, France and England;-to allow the Neutral maxim, Free ships, free goods, in its full extent; and to add to it the English limitation of the Belligerent maxim; so that enemies' ships shall not make enemies' goods, but that Neutral goods shall be free in Enemies' ships. This important advance in mitigating the severity of the Laws of Naval warfare has been announced, as the course which England and France intend to pursue in the present war with Russia (1854). 7 A still further step is conceivable in the same direction; namely, that private commerce should be altogether exempted from the attacks of naval warfare, as it has long, (as a general rule,) been exempted and protected in warfare by land;—that trading vessels should not be assailed by vessels of war belonging to the enemies' country, but should be allowed to proceed on their voyages of traffic unmolested; as carts and waggons proceed along roads, and barges along canals, in a country occupied by contending armies. In this way, naval warfare would be confined to the ships of war of each country. Fleet would fight with fleet, as army fights with army; and while these violent proceedings shook and deformed the surface of things, the current of private industry and commerce would flow below uninterrupted in its beneficial course. 8 It is however perhaps hardly to be expected that belligerents should restrain themselves within these limits in naval warfare. In the case of land invasion, the invader, so far as he is successful, assumes, as we have said, the place of the governing power and if the portion of his enemy's territories which he has thus seized prosper under his rule, he himself derives advantages from their prosperity. It is an advantage to him to be in a land of plenty, even if he pay for all that he consumes; and with his over-mastering power, he can at any time levy contributions out of the wealth which he has spared. Shops and warehouses, factories and palaces, remain where they are, and can be at any time subjected to military visitation, when the invader's law of alleged necessity requires that they should. But with regard to commercial property at sea, the case is different. That, if once let slip, is, in general, quite out of the captor's reach, and lost to him altogether. Moreover external commerce is generally regarded as enriching the state which carries it on, and thus aiding it in carrying on the war; and to cripple its commerce is therefore, indirectly, to weaken its belligerent force, and is thus a proper object of war. 9 We may add, that the difficulty of distinguishing what kinds of goods have really no direct bearing on the conduct of the war, would be considerable; as also the difficulty of determining what lines of transit might be pursued by commercial vessels, without affecting the results of the war. But these difficulties, to a certain extent, the Code of International Law undertakes to solve, by the Rules which it lays down respecting goods which are Contraband of War, and passages which are Breach of Blockade. It does not appear, therefore, a matter to be absolutely despaired of, that the Rights of Commerce in the time of war, as they are affected by naval warfare, may be still further extended, and still more liberally defined, than they have yet been. |